Court to decide test for ACC cover for treatment injuries that aren’t ‘ordinary’ – Stuff.co.nz

TOM PULLAR-STRECKER/STUFF

ACC asked the Court of Appeal to reset the legal test for granting cover for treatment injuries. (File photo)

ACC looks likely to win an argument that a High Court judge applied the wrong test in a guideline decision about who qualifies for accident compensation when treatment goes wrong.

A judge decided in late 2018 that personal injury from treatmentwould qualify for ACC cover if, when all the information was known afterwards, the injury was anunlikely consequence on thebalance of probabilities.

The test expanded the number of people who would qualify for ACC and the Court of Appeal heard on Wednesday that, except in the case of the two women directly involved, ACC had not been applying that form of the test while it was under appeal.

And, provisionally at least, the three Court of Appeal judges agreed the High Court had been wrong but thecourt's president, Justice Stephen Kos, said ACC still had to persuade the court its interpretation was the right one.

READ MORE: *High Court ruling means ACC will accept more treatment injury claims: lawyers *Stroke sufferer not letting disability get in the way of Outward Bound adventure *Cerebral palsy teen loses appeal to have treatment covered by ACC *ACC should cover sickness and disability, says Sir Geoffrey Palmer

The true position might be somewhere between what ACC wanted and what the lawyer for the two women wanted.

One of the women,Brenda Ng, hadthree brain artery aneurysms in 2013 and after surgeryshe had a stroke, which has left her with significant impairment.

Another woman, who had name suppression, was left incontinent and with partial paralysis in one leg after spinal surgery.

In both cases the High Court judge said that ACC should grant insurance cover to the women because the consequences were not an ordinary consequence of treatment.

On appeal ACC's lawyer, Hugh Rennie, QC, said ACC was proposing a test that was case specific and fact based, developed with health providers. Whether an adverse outcome was ordinary or not depended on what you were assessing and the severity of the outcome.

The corporation strongly believed it was looking at the problem from the claimants point of view, he said.

The Court of Appeal reserved its decision. When it was issued the cases of both women should be reassessed, Rennie said.

The sort of treatment that could result in adverse outcomes was not just surgery.

The lawyer for the two women, Brittany Peck, said the High Court decision was the best interpretation of the law. Rather than expanding cover it reverted to the way the law was applied for a period from 1982.

Without a clear yardstick there would be unfairness in who is granted cover, and it had to be a test that ACC case managers, who were not legally qualified, could apply, she said.

ACC had tried to givethe impression that applying the High Court decision would have the effect of granting almost all of the claims made, but there was no evidence of a surge of claims after the High Court decision, Peck said.

Many treatment injuries came from side effects of medication, but they were difficult to prove because adverse outcomes might be from the medication or might be part of the condition being treated.

The High Court decision resulted in a generous test but there would still be people who would not be covered, Peck said.

One of the judges, Justice David Goddard, said the Court of Appeal was being asked to draw arbitrary lines between different misfortunes.

Stuff

Excerpt from:
Court to decide test for ACC cover for treatment injuries that aren't 'ordinary' - Stuff.co.nz